Dr. Bindu Devdutt Purohit vs Alka Purohit
2016 Latest Caselaw 3090 Bom

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                                                                      201 fca 164.10 as.doc


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                             
                       FAMILY COURT APPEAL NO.164 OF 2010




                                                     
                                       WITH
                         CIVIL APPLICATION NO.324 OF 2010
                                        IN
                       FAMILY COURT APPEAL NO.164 OF 2010
                                       WITH




                                                    
                         CIVIL APPLICATION NO.145 OF 2016
                                        IN
                       FAMILY COURT APPEAL NO.164 OF 2010




                                         
    Dr. Bindu Devdutt Purohit
    Age: Adult, Occ. Doctor,
                                 
    Hindu, Indian inhabitant of Mumbai
    R/o Flat No.B/102, Gokul Apartment,
    Shimpoli Road, Borivali (West),
                                
    Mumbai - 400 092.                                   ..... Appellant

            V/s
      

    Ms. Alka Purohit
    Age: Adult, Occ. Housewife,
   



    Hindu, Indian, C/o R.P. Pandey
    Old 86, New 95, Residency Area,
    Radio Colony, Indore (M.P.)                         ..... Respondent





    Ms. Seema Sarnaik i/b Mr.Amitkumar D. Sale for the Appellant/Applicant.
    Ms. Mamta Sadh a/w Mr. Ishwar Ahuja i/b M/s. Thakordas Madgavkar for
    the Respondent.
                                   CORAM : A.S. OKA &





                                                     A.A. SAYED, JJ.

DATED : 22 JUNE 2016

ORAL JUDGMENT: (Per A.S. OKA, J.)

1 Called out for final hearing. At the outset, we may record here that

though the Family Court Appeals of the year 2007 onwards are pending

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in this Court for final hearing, out of turn priority is given to this Appeal of

the year 2010 in the light of the order passed by the Apex Court directing

the expeditious disposal of this Family Court Appeal.

2 By this Appeal, the Appellant husband has taken an exception to

the judgment and decree dated 5 August 2010 passed by the Family

Court at Bandra, Mumbai. The Appellant is the husband and the

Respondent is the wife. An Application was made by the Appellant under

section 25 of the Guardians and Wards Act, 1890 (for short "the said

Act") for the custody of minor children. When the Application was filed by

the Applicant on 7 December 2009, a prayer for custody was made in

relation to the eldest daughter Medhavi born on 15 February 2006 and

son Dhruv born on 14 August 2008. During the pendency of the

Application before the Family Court, the third child by the name

Savyasachi @ Saurabh born on 19 January 2010. By the impugned

judgment and decree, the learned Judge of the Family Court has

dismissed the said Application.

3 The learned Counsel appearing for the Appellant husband has

made submissions which are in two parts. The first submission is based

on the conduct of the Respondent wife which is reflected from the

averments made in the Petition under section 25 of the said Act. She

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urged that without consent of the Appellant husband, on 6 July 2009, the

Respondent walked out of his house along with two children. She invited

our attention to the material averments in the Petition which are

supported by an Affidavit in lieu of examination-in-chief of the Appellant

and in particular paragraphs 17 to 19 of the Petition. She pointed out that

the Respondent wife was under treatment of a Psychiatrist. She also

pointed out the averments made in paragraph 19 of the Petition and in

particular regarding the effect of a patient of schizophrenia stopping

intake of medicines. It is pointed out that as a result of the Respondent's

failure to take medicines, her behavior became very aggressive. She

invited our attention to the incident of 6 July 2009 when the police were

brought to the residence of the Appellant. She also invited our attention

to the manner in which custody of the minor daughter was snatched by

the Respondent, as a result of which the Appellant was required to report

to the police. Her submission is that the evidence of the Appellant

husband has gone unchallenged and, therefore, there was no reason for

the Family Court to protect the illegal custody of minor children by the

Respondent wife.

4 Her second limb of the argument is based on events which have

happened during the pendency of the Appeal. She has relied upon the

reports of the Marriage Counselor. The first report which is relied upon is

dated 22 November 2013 of the Marriage Counselor attached to Family

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Court at Indore. The second report which is relied upon is dated 9

August 2011 is of the Marriage Counselor at Family Court at Bandra,

Mumbai. She submitted that the Appellant is entitled to rely upon the

subsequent events which are reflected from the documents placed on

record of the Appeal. She, therefore, submits that an opportunity may be

granted to the Applicant to prove the subsequent events and especially

the documents which are annexed to the Civil Application No.145 of

2016.

5 We have given careful consideration to the submissions. The

Application under section 25 of the said Act was made by the Appellant

on 7 December 2009 when the third child was not born. Affidavit in lieu

of examination-in-chief was filed by the Appellant on 29 June 2010. As

stated earlier, the third child Savyasachi @ Saurabh is born on 19

January 2010. In the Affidavit in lieu of examination-in-chief filed by the

Appellant on 29 June 2010 a prayer is specifically made only for grant of

the permanent custody of Medhavi and Dhruv. As stated earlier,

Medhavi is born on 15 February 2006. Thus, her approximate age today

is 10 years and 4 months. Dhruv is born on 14 August 2008. Hence, his

approximate age is 7 years and 10 months. The prayer for custody of the

third child which has been made in the Appeal will have to be kept it out

of consideration as no such prayer was made by the Appellant before the

Family Court.

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6 We have perused the averments made in the Petition under

section 25 of the said Act as well as the Affidavit in lieu of examination-in-

chief of the Appellant. First allegation is that though the Respondent was

under treatment of a Psychiatrist, on 2 July 2009 when she learnt that

she had conceived for the third time, she stopped taking the medicines

prescribed by the Psychiatrist from that day. The allegation is that as a

result, she became aggressive. The second part of the allegation is

about the manner in which the Appellant was deprived of the custody of

the two minor children from 6 July 2009. Neither in the Petition under

section 25 of the said Act nor in the Affidavit in lieu of examination-in-

chief a case is made out that from 6 July 2009 onwards, the Respondent

mother is not properly looking after the children. It is not the case made

out that she has ill-treated the children. The reliance is placed on the

aforesaid two reports of the Marriage Counselors. The report of the

Marriage Counselor attached to the Family Court at Indore at highest

suggests that both the minor children were tutored. The home visit report

relied upon by the Appellant of the Marriage Counselor at Family Court at

Bandra, Mumbai dated 9 August 2011 specifically records that the

Respondent has admitted the three children in a school in the vicinity of

the premises acquired by her parents at Borivali and the children are

involved in extra-curricular activities. The learned Counsel appearing for

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the Appellant pointed out that subsequently the children were shifted to

Madhya Pradesh and today, they are not residing with the Respondent.

7 The issue is of disturbing the custody of two minor children. As

stated earlier, the present age of the daughter is 10 years 4 months and

that the age of the son is 7 years 10 months. The question is whether the

custody of minor daughter and son at this tender age should be

disturbed only on the ground that the custody was illegally snatched by

the Respondent mother on 6 July 2009. As far as alleged psychological

ailment of the Respondent is concerned, no attempt is made by the

Appellant to examine the Psychiatrist as a witness.

8 As far as the subsequent events on which reliance is placed by the

Appellant are concerned, we must note here that on 23 March 2016 this

Court directed that the Appeal should be added to the weekly board for

the final hearing. After perusing the order of the Apex Court dated 15

December 2014 and after noticing that the Appeal did not reach final

hearing, the same was fixed on 6 June 2016 for fixing early date of

hearing. On 6 June 2016, the Appeal was ordered to be notified on the

weekly board of the week commencing from 27 June 2016 high upon

board. Though the Appellant was aware that from 23 March 2016 that

the Appeal is likely to be heard finally, no attempt is made by the

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Appellant to even file an Application for seeking permission to lead

additional evidence on the basis of subsequent events.

9 The issue is of disturbing the custody of the mother of minor

children of tender age. Suffice it to say that before the Family Court

there was no evidence adduced for justifying the drastic order of

disturbing the custody of the mother. As stated earlier, the two children

are continuously in the custody of mother from 6 July 2009. Even

according to the case of the Appellant, till 6 July 2009, the Appellant and

the Respondent were staying together with their children.

10 The law is very well settled as far as the issue of custody of minor

children is concerned. The dispute between their parents is of no

consequence and the only paramount consideration is the welfare of the

minors. There is not even an iota of evidence on record to show that

either the children are not being properly looked after by the Respondent

mother or that there is any other ground to disturb the custody of children

of tender age. Only on the basis of the documents placed on record of

the Appeal in the form of a compilation, no such conclusion can be

recorded. Firstly, none of the documents are proved by the Appellant.

Secondly, the Respondent had no opportunity to deal with the said

documents are there is no Application made for grant of permission to

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lead additional evidence. Moreover, the two reports of the Marriage

Counselors relied upon by the Appellant do not support the case of the

Appellant.

11 Thus as of today, as far as the Appellant is concerned, it is a case

of no evidence. We are of the view that disturbing the custody of minor

children of tender age will be against their interest and welfare.

12 It is well settled that the orders of custody of minor children are

never final in the sense that in case of change in circumstances, the

parties can always approach the competent Court for seeking the orders

regarding grant of custody or temporary access or visitation rights. If

according to the case of the Appellant, after filing of the Appeal, there are

many subsequent events which according to him are sufficient to compel

the competent Court to disturb the custody of the mother, the Appellant

can always file appropriate proceeding before the appropriate Court for

grant of appropriate relief.

13 Suffice it to say that on the basis of evidence on record of this

Appeal, it is not possible for us to disturb the custody of the children. We

may make it clear that we have considered the evidence which was

adduced before the Family Court and not any other material placed in

the form of compilations except the two reports of the Marriage

Counselors.

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14 The learned Counsel appearing for the Respondent tried to raise a

contention regarding the Court before which such an Application will lie.

However, it is not necessary for us to decide the said issue. Needless to

say that the Appellant will have to file an Application before the Court

having jurisdiction to entertain such Application.

    15         Accordingly, we pass the following order:




                                            
    i)        Family Court Appeal No.164 of 2010 is hereby dismissed with no
                                    
              order as to costs;
                                   
    ii)       Civil Application Nos.324 of 2010 and 145 of 2016 do not survive

              and the same are disposed of;

    iii)      Notwithstanding the dismissal of the Appeal, it will be open for the
      

Appellant to file appropriate proceeding before the competent

Court on the basis of the alleged subsequent events;

iv) If such an Application is made, we are sure that the Family Court

will give necessary priority to the disposal of the Application. If any

Application is made for grant of interim relief in such proceedings,

the Family Court shall endeavor to dispose of the interim

Application as expeditiously as possible and preferably within a

period of two months from the date on which the notice of the said

Application is served to the Respondents;

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v) We make it clear that except for the two reports of the Marriage

Counselors which are referred in the judgment, we have not taken

into consideration any of the documents placed on record by the

Appellant in the form of additional compilation and hence, we have

made no adjudication thereon.

                        (A.A. SAYED, J.)                        (A.S. OKA, J.)
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